Case Information

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FILED

June 10, 2015 Third Court of Appeals Jeffrey D. Kyle Clerk

CASE No. D3-14-D0525-CR

IN THE CDURT OF APPEALS THIRD JUDICIAL DISTRICT AUSTIN,TEXAS

ELIAS SHAWN BELL,
Appellant,

vs.

THE STATE OF TEXAS, Appellee,

BRIEF FOR APPELLANT

On Appeal from the judgment C43-D631-SA in the 340th District Court Tom Green County

Respectfully requesting Oral arguments:

Elias S. Bihl

3001 S. Emily Dn Beeville, TY.YB102

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INDEX OF ANTIOETTLES

CASES PASSES Cola v. Arkansas, 333 U.S. 353, 362, 57 S.Ct. 255, 259...'I 81 L.Fd. 278

In re Winship, 397 U.S. 358,90 S.Ct. 1068,25 LEd 368... 4 Jackson v. Vinginic 443 U.S. 307,99 s.Ct. 2791,121 L.Ed. 2d 260,556

TARLE OF CONTENTS

Identities of partie and counsel $$ i Table of Contents $$ i Index of Authorities $$ i Case in Brief $$ 1 Statement of facts $$ 2 Argument and Authorities $$ 3 certificate of service $$ 8

IDENTITIES OF PAETTE AND COUNSEL

1: Hon. Jason Ferguson Tom Green Counts "ADA" 2: Appellant Elias Shawn Bihl

*3 IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AUSTR, TEXAS

ELIAS SHAWN BELL, Appellant, v3. No.03-14-00525-CR

THE STATE OF TEXAS, Appellee,

Appealed from cause number C-13-D-31-5A in the 340TH District Court Tom Green County, Texas

TO THE COURT OF APPEALS:

THE CASE IN BRIEF

THE INDICTMENT THE PLEA THE VERbICt

THE PUNISHMENT

AGGRAVATED ASSAULT WITH A DEADLY WEAPON.

NOT QUILTY QUILTY OF AGGRAVATED ASSAULT WITH A DEADLY WEAPON.

THIRTY YEARS IN THE INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE.

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STATEMENT OF FACIS

The following summary is intended to provide a brief overview of the testimony at trial. Further discussion of the testimony will be reserved for the argument and authorities section of appellant's points of error.

The record indicates that the appellant Elias shown 844 and Rigoberto Rivera used to be roommates. On May 12, 2013 the two return to the house they where staying at to do drugs and alcohol. Later something happen to where appellant's behavior was of being seared of Rivera. Appellant ended up getting his gun and started hitting Rivera in the head with the butt of the gun. Rivera ended up playing as he passed out and once appellant left the room Rivera pushed a air-conditioner unit out the window and head first jumped out the window and and landed in pieces of glass then jumped over a wired fence and ran to a neighbor's house for help. Appellant was found guilty of the offense aggravated assault with a deadly weapon. An timely notice of andeal was given to the honorable court.

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PART Number One:

The Trial Court erred in holding the evidence to be legally sufficient to sustain the conviction of the appellant because the evidence was insufficient to establish that the appellant did commit the offense.

The sufficiency of the evidence is a question of lare. In the case at hand appellant will show that the defense's evidence outweighs the State's evidence. Appellant was indicated for, "intentionally knowingly or recklessly cause bodily injury to Rigoberto Rivera by stabbing the said Rigoberto Rivera with a knife, and the defendant did then and there use or exhibit a deadly weapon to-wit: A knife." It goes on to said; which in the manner of its use and intended use and intended use was capable of causing death or serious bodily injury during the commission of said assault.

The United States Supreme Court has long established that the beie Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against a conviction upon proof beyond a reasonable

*6 doubt of every fact necessary to constitute that which he is charged. See In ne Winchip 397 U.S. 350, 90 S.Ct. 106825 L.Ed. 2 d 368. In this case the State was to prove that appellant stabbed Rigoberto Rivera with a deadly weapon namely a Knife. Appellant will show that this conviction was obtained by unconstitutional failure of the prosecution fail to introduce any evidence that the victim was stabbed by said Knife. The record states: At vol 4 page 57 line 18 I didn't --I didn't really see the Knife, you know, because he had me like this. So I didn't see the Knife." The State introduce State's exhibit No. 56 which is the Knife to been proven to had stabbed Rigoberto Rivera. The record states: At vol 4 page 58 line 21 "Okay And up to that point you had claimed it was a kitchen Knife; is that correct". Honestly, I'm not sure if that's the Knife. Okay You're not sure if that's the knife? Huh-uh. Honestly I'm not sure if that's the knife. The State never showed the jury any evidence that appel- never use a knife to stabb Rivera.

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The State act to broaden the charge contained in the indictment. Appellant was on trial for assault with a knife. However at trial the State proof went beyond the allegation in the indictment that Rivera was assaulted with a knife. The State also showed that appellant assaulted Rivera with a gun. This caused a miscarriage of justice it was unfair to give alot of testimony of Rivera getting hit in the head many times with the lewth of a handgun, Jackson v. Virginia, 443 U.S. 307,99 S.C. 2991 , (ol L.Ed. 2d 200. States that the charge must be correct and must give directions by the Judge. The charge in this case only applied the Law it gave no instructions. So when the fact finders read the Law that applies to the offense to who commits an assault and not directed on the State must prove that the defendant stabbed Rivera with a Knife. Then the charge to the jury is not correct because the essential element is missing.

Conclusion

The record is devoid of any evidence of appellant

*8 Testimony from Rivera states that he never knew he was injured until he was at the hospital. See vol 4 page 60 line 6r. Well I didn't - I didn't - I didn't notice until I was at the hospital. Appellant is not asking the honorable court to be a thirteenth juror. The essential element here is has the State proved their case. Can the fact finders find the essential element in this case, as Jackson V. Virginia, 443 U.S. 307,99 S.C. 2781 , lot L.Ed. 2 d 210, requires. In Jackson the court found that due process guaranteed by the fourteenth amendment requires that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of the element of the offense. In the case at hand the State doesn't have testimony from the victim stating appellant, stabbed him or testimony from mediedl stating that the victim was treated by them for a stabbing injury and or someone seen appellant stab the victim.

*9 stabbed Rivera. The Court of Appeals lies only to review fundamental or constitutional rights denied by the trial court or the State. This error involved here is among a constitutional rights that every accuse in a criminal proceeding in all District Courts (Federal or State) is a violation of convicting of a charge that was never made. Cole V. Arkansas, 333 U.S. 353, 362, 57 3.Ct. 255, 259, 8I L.Ed. 278.

Prayer

Appellant makes a Jackson claim, he assert that the trial leading to his conviction was flawed in that the evidence of guilt presented in the trial record are insufficient to support the verdict. Therefore appellant prays that the honorable court dismis the Anders Brief that was filled in appellant's behalf and the court over- rules the judgment of the 340v District Court of Tom County Texas and remand appellant to answer the indi- ment against him.

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CERTIFCATE OF SERVICE

A true copy of this Brief was sent to the Honorable Jason Ferguson at the Tom Green County District Attorney's Office. 124 W. Deauregard Ave, San Angelo, Texas, 74022 Bu Elias S. Bihl on June 52015 Elat S. Bull Hias S.Bihl

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